Answers Received by the-general-secretariat in Reply Questionnaire on European Protection Order

5002/10 SC/ec 1DG H 2B EN/FR

COUNCIL OFTHE EUROPEAN UNION

Brussels, 6 January 2010

5002/10

COPEN 1

NOTEfrom : General Secretariatto : Working Party on Cooperation in Criminal MattersNo. prev. doc. : 13577/09 COPEN 176Subject : European Protection Order

- Answers by delegations in reply to the questionnaire

On 23 September 2009, the General Secretariat distributed document 13577/09 COPEN 176, containing a questionnaire drawn up by the (incoming) Spanish Presidency on the envisaged instrument for a European Protection Order.

Many delegations provided answers to this questionnaire, for which the Presidency is most grateful. The answers received are set out in the Annex to this note.

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5002/10 SC/ec 2ANNEX DG H 2B EN/FR

ANNEX

ANSWERS RECEIVED BY THE GENERAL SECRETARIAT IN REPLY TO THE QUESTIONNAIRE ON "EUROPEAN PROTECTION ORDER"

(ref: 13577/09 COPEN 176)

TABLE OF CONTENT

REPLY BY (DELEGATION): PAGE:

1. BELGIUM..........................................................................................32. BULGARIA........................................................................................63. CZECH REPUBLIC..........................................................................104. DENMARK .......................................................................................145. DEUTSCHLAND / GERMANY........................................................166. EESTI / ESTONIA.............................................................................217. ESPANA / SPAIN ............................................................................248. FRANCE ............................................................................................269. ITALY ................................................................................................2910. LATVIA .............................................................................................3111. LITHUANIA ......................................................................................3312. NETHERLANDS ...............................................................................3713. STERREICH / AUSTRIA ..............................................................4014. POLAND ............................................................................................4215. PORTUGAL.......................................................................................4416. SLOVENIA ........................................................................................4617. SLOVAKIA........................................................................................4918. SUOMI / FINLAND...........................................................................5119. SWEDEN............................................................................................5320. UNITED KINGDOM.........................................................................55

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BELGIUM

1. Can you provide statistics, or give an estimation, of the number of cases in which yearly in your Member State obligations are imposed on (alleged) offenders for the protection of victim(s), such as the obligation to avoid contact with the victim, and the obligation not to enter certain localities, places or defined areas where the victim lives/works?

In Belgium the public prosecutor, as well as the court, can impose conditions that concern the protection of a victim. Nonetheless it is impossible to use the statistics coming from these two institutions to answer the question that is posed. The envisaged conditions, obligations are not registered as specific variables in their statistics, what makes it impossible to give a correct estimation.

2. a) In your Member State, are such obligations (always) imposed by a criminal court in the context of criminal proceedings, or can they also be imposed by a civil court or administrative authority in the context of civil or administrative proceedings?

In Belgium such obligations are possible both in criminal and civil proceedings. Of course, the interpretation and the follow-up of such obligations will differ depending on the criminal or civil nature of the imposed obligation

b) In case obligations can be imposed by a civil court or administrative authority, are there any criminal consequences if the obligations imposed are infringed?

No, there are no criminal consequences. The infringement of an imposed civil measure can be sanctioned by the judge of the civil court, through the payment of a sum of money. It is called une astreinte.


3. Do you share the opinion that a mechanism whereby a victim can ask for the enforcement, in the Member State to which he/she moves (executing State), of a measure imposed on an (alleged) offender in another Member State (issuing State) would improve the protection of the victim?

We are convinced that if indeed there would be a mechanism allowing the victim, who moves to another Member State, to demand, himself, for the enforcement of a measure imposed in the Member State of origin, this would increase the victims sense of security. Improving this sense of security seems necessary in order to let these victims fully enjoy their right of free movement and settlement.

4. Do you foresee any special difficulty to enforce as an executing State an obligation (possibly adapted in accordance with your national law) that has been imposed on an (alleged) offender in the issuing State?

In general, we do not foresee more difficulties than other Member States. When we take into account the different frameworks in which such a measure can be implemented in the Belgian context, the difficulties that we will encounter will not differ from those encountered by other implementing states. However, the challenge presented will be finding a system, instrument or mechanism that allows an efficient and transparent application of the protection measure.

This instrument should be flexible so that the different national systems can easily implement the foreseen provisions, allowing the victim to benefit from the protection as quickly as possible.

This also raises the question of how such obligations will be enforced in the executing state, a question which implies further reflection.

At this moment we believe that the instrument should be limited to obligations imposed in criminal proceedings. We believe that this position can be supported by the argument that this Protection Order would become an instrument in the European framework of Cooperation in


Criminal Matters, and because it can undoubtedly be stated that the procedures of imposing and follow-up of these obligations within the Civil Law context are quite different from those in the Criminal Law context. This would therefore render the redaction of the instrument more difficult.

The instrument should pay particular attention to the quickest ways of communicating the data, permitting the identification of the perpetrator. Making it possible for the controlling authorities to dispose of all the practical information, as soon as possible, is of the utmost importance in order to be able to offer the victim a concrete protection.

Agreements should be made on the consequences of the infringement of the obligation. These consequences have been formulated rather vague in the text.

Article 8, point nr 6 stipulates the obligation for the country of a person, causing a danger that is moving to the executing state, to inform the issuing authority and the protected person when he or she (person causing the danger) ignores it. In the event of an infringement of the Protection Order the executing state has to inform without delay the issuing authority and the protected person and take the appropriate measures to proceed to his or her detention and his or her extradition to the issuing state. In article 12 it is mentioned that the law of the executing state governs the application of the protection measures, approved by its competent authority.

These provisions raise certain questions. For instance, if the executing country approves a protection measure issued by the issuing state and that measure is an obligation that was imposed as a condition for the person causing the danger to obtain a conditional release ( in between a preventive custody and his appearance before the judge). If an infringement occurs, what will happen to the case? Will the infringement be sanctioned by the judge of the issuing state (That is the principle in the Framework Decision on the European Surveillance Order) or by a judge from the executing state, as article 12 mentioned? Will there be a transfer of the case or will each judge rule on a certain aspect of the case and recognize the decision of the other judge? The abovementioned can lead to a situation in which there is no longer a connexion between the initial crime and the new habitat of the victim.

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BULGARIA


Bulgaria can not provide the required statistical data since in accordance to Bulgarian criminal law all the probation measures and in particular those restricting the free movement of the offender are imposed for punishing the offender and not for protection of the victim. Thus, the Bulgarian legislator puts emphasis on the restrictive nature of the above said probation measure in order to prevent the commission of another or the same crime. Article 42a of the Bulgarian Criminal code sets out the probation measure of restriction on free movement as a penalty, which comprises the following three prohibition measures: prohibition from attending locations, areas, and establishments, as strictly specified in the sentence; prohibition from leaving the populated area for more than 24 hours without permission from the probation officer or public prosecutor; prohibition from leaving his/her residence during certain hours of the day or night.


No, not only.

In cases of domestic violence the victim is entitled to turn to court for protection. The sought protection can be ensured by obligating the perpetrator to refrain from committing domestic violence; removing the perpetrator from the jointly occupied dwelling for a term, specified by court; prohibiting the perpetrator to enter the dwelling, place of work and the locations of social contacts and recreation of the victim under conditions and for a term, specified by the court; provisional designation of the place of residence of the child with the victim parent or the parent, who did not perpetrate violence, under conditions and for a term, specified by the court if this would not be against the child's interests; obligating the perpetrator of violence to


attend specialized programs; directing the victims into rehabilitation programs. The procedure is regulated within the Law on the protection against domestic violence and is being carried out outside the criminal proceedings. The protective order is issued by a civil court.

Special protection can be given to individuals at risk in relation to criminal proceedings, as well as to individuals directly related to them, who can not afford the protection provided for under the Criminal Procedure Code. The terms and conditions for the provision of special protection are detailed regulated within the Law on Protection of individuals at risk in relation to criminal proceedings. The group of individuals at risk eligible for these special protection is very broad and includes the participants in criminal proceedings (witnesses, private prosecutors, civil parties, the accused, defendants, expert witnesses, certifying witnesses) and the convicted person if their testimony, explanations or depositions provide significantly important evidence to criminal proceedings for some serious criminal offences under Chapter One, Chapter Two, and Chapter Six, Article 242, paragraphs 2, 3 and 4, Chapter Eight, Title IV, Chapter Eleven, Article 330, 333, 354a - 354c , and Chapter Fourteen of the Bulgarian Criminal Code, as well as for all criminal offences committed at the orders or in implementation of a decision made by an organised criminal group (Article 4). Relatives of the participants in criminal proceedings and the convict or individuals who are very closely related to the latter may also receive protection under this law. The aforementioned law contains a set of measures such as personal physical protection; property protection, provisional placement in a safe location; change in the place of residence, workplace, or educational establishment or placement in another facility for the service of a sentence; full change of identity.

Admission to the Programme for Protection shall be made at the proposal of a district prosecutor and, at the trial stage of proceedings, of the judge who is trying the case and shall be addressed to a special administrative body the Protection Board for the protection of individuals at risk within the Ministry of justice. The proposal for the provision of protection can be made ex officio or at a request of the individual at risk, the investigative body or the supervising prosecutor. The Protection Board is composed a deputy minister of justice, the head of the Protection bureau, a judge from the Supreme court of cassation, a prosecutor from the Supreme Prosecutor's office of cassation, an examining magistrate from the National investigation service, and one representative from each the Ministry of Interior and the State agency for national security occupying the position of Director of Directorate (Art. 13a).


The Protection Board examines the proposal of the district prosecutor or the judge, and assesses whether testimony, explanations or depositions by the individuals at risk are of significant importance to the criminal proceedings, as well as the objective presence and level of risk. Depending on the conclusions made the Protection Board takes the decision whether or not to provide protection.


Yes, there are criminal consequences. They are envisaged only for domestic violence cases, where the obligations implied by the court are being infringed. According to Article 21 paragraph 2 of the Law on protection against domestic violence if the perpetrator violates the protective court order, the police body, which has established the violation, shall detain the perpetrator and inform forthwith the prosecutor's office.


We agree that the proposed mechanism could be a useful instrument with regard to safeguarding the life, physical and psychical integrity, freedom, sexual indemnity or property of a person whose situation of danger has been stated during the criminal procedure. Bulgaria shares the opinion that the classical orientation of the criminal proceedings, which refers mainly to the offenders figure, needs to be changed in order to avoid possible violation of the protective measures against second victimization. Bulgaria is looking forward to receive for further consideration the redrafted Spanish proposal.



We do not foresee any particular difficulties. Bulgaria has already a working mechanism for recognition and enforcement of effective sentences issued by foreign national courts (Chapter 33, Section 2 Criminal procedure code). While according to Bulgarian criminal law probation measures are penalties, the prescriptions of CPC in question can be applied for recognition and enforcement of court sentence, including those imposing probation measures if the following conditions are met:- The act in respect of which the request has been made constitutes a criminal offence under Bulgarian law- The offender is criminally responsible under Bulgarian law;- The sentence has been issued in full compliance with the principles of the Convention for the Protection of Human Rights and Fundamental Freedoms and with the Protocols thereto, to which the Republic of Bulgaria is a party;- The offender has not been sentenced for a crime that is considered political or for one associated with a political or a military crime;- In respect of the same offender and for the same crime the Republic of Bulgaria has not recognised any sentence issued by another national court;- The sentence does not stand in contradiction to the fundamental principles of Bulgarian criminal and criminal procedural law (Art.463 CPC). The request for recognition of a sentence issued by foreign national courts in the Republic of Bulgaria shall be extended to the Bulgarian Ministry of Justice by the competent authority of that other state. The Ministry of Justice shall refer the request together with the sentence and other relevant documents attached thereto to the district court at the place of residence of the sentenced individual.

On grounds of an international agreement to which the Republic of Bulgaria is a party or on the principle of mutuality assistance in the fulfilment of the protection as set forth in the Law on protection of individuals at risk in relation to criminal proceedings can also be provided. At request of other state the Bulgarian competent authority can provide residence to an individual transferred to the Republic of Bulgaria within the framework of a Programme for Protection or temporary residence in the Republic of Bulgaria to a foreign individual under protection for the period indicated in the request, as well as personal physical protection, where necessary.

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CZECH REPUBLIC

1. Can you provide statistics, or give estimation, of the number of cases in which yearly in your Member State obligations are imposed on (alleged) offenders for the protection of victim(s), such as the obligation to avoid contact with the victim, and the obligation not to enter certain localities, places or defined areas where the victim lives/works?

We do not have such specific statistical data.

In the year 2008 the court has imposed 895 punishments of prohibition of residence (however, we do not know how many of them where imposed so as to protect the victim), 2713 suspended sentences with supervision, however we do not know the exact contents of the obligations or restrictions, if there were any imposed, and how many of those were connected to protection of the victim (according to our Criminal Code the restrictions which could apply to victims are in particular (the list is not exhaustive) the obligation that the offender desists from visiting unsuitable milieus, sporting, cultural and other social events, and from contacts with particular persons.

In the year 2008 the police authorities decided in 679 cases on eviction of a person from his/her place of residence which is shared with a person in danger, in 406 cases the persons requested the civil court to prolong the preliminary measure.


In the context of criminal proceedings the criminal court can impose the following measures: - The punishment of prohibition of residence, which consists in prohibition of staying in a certain specific determined place or district throughout the duration of the punishment (from 1 to 5 years). If the offender needs to stay in such a place for personal reasons, he must obtain authorisation (permission) thereto. The offender cannot be prohibited from staying in a place or district of his permanent residence.


- If the offender is a foreign national the court may impose the punishment of expulsion. - The court may impose suspended sentence of imprisonment with supervision, conditional waiver from the term of imprisonment with supervision and conditional release from the term of imprisonment with supervision. Within the contents of supervision, the court may impose certain restrictions or obligations. Among others it is possible to oblige the offender to desist from visiting unsuitable milieus, sporting, cultural and other social events, and from contacts with particular persons (individuals). Since 1 January 2010 the court will be able to oblige the offender to abstain from unlawful violation of rights or legally protected interests of particular persons.

Apart from the criminal proceedings, according to the Act on Police the police officers are authorized to evict a person from his/her flat or a house which is shared with a person in danger, when it can be reasonably anticipated, especially with regard to previous attacks, that the evicted person might commit another attack against life, health, freedom or human dignity of another person. The person might be evicted also from the nearby surroundings of the residence. Such obligation must be performed immediately. However, such measure lasts only 10 days and during this time the evicted person cannot enter the determined territory, must give the police authority all relevant keys and must abstain from or must not take a contact with the person in danger.

The court in civil procedure might impose a preliminary measure on a person against whom the proceedings are conducted, due to the fact that the complainants life, health, freedom or human dignity is in danger. Such preliminary measure may rest particularly in imposing to leave the cohabited residence, as well as the nearby surroundings, to not to enter such premises, to not to take contact with the complainant or refrain from any undesirable stalking of the complainant. Such preliminary measure may last 1 month and may be extended up to 1 year.

The Criminal Code states a definition of a criminal offence of torture of a person living in a shared apartment or house or a close person, which is punishable by a term of imprisonment up to 3 years. In case the act is committed in a particularly cruel manner or against two or more persons, or the offender continues this activity for a longer time, the offence may be punishable by a term of imprisonment from 2 to 8 years.



In case the above-mentioned administrative or civil measures are not obeyed it may constitute a criminal offence of frustrating execution of an official decision, which states that whoever frustrates or substantially obstructs execution of a decision of a court or another state authority by (among others) staying without permission and a serious reason in a place or district from which he has been prohibited, or by not complying with a restriction imposed on him in connection with his sentence; staying in the territory of the Czech Republic, even though he has been expelled from it or prohibited from staying on its territory; performing an activity which he has been prohibited from carrying on; or committing an act or activity which seriously or repeatedly frustrates the decision on expulsion issued according to a special legal enactment or according to a precaution of the court.


We agree that such mechanism could improve the protection of the victims. However, we have doubts regarding its practical use. Our competent authorities have not experienced serious cases requiring further action at the EU level in this area. Bearing in mind that two new Framework Decisions (ESO and probation), which improve the protection of the victims in comparison to the current state significantly, have just been recently adopted, it could be considered as more appropriate to wait for their evaluation, in particular whether they are used by practitioners, first.



As it follows from the information given under the question 1, in our legal system we have explicitly only minimum of the measures which are foreseen under Article 2 Paragraph 2 of the Proposal. But given the limited scope of the paragraph in the new draft of the Proposal, we might be able to find a way for adjusting the measures issued in another State so that we could able to execute them in our legal system. In this regard it is essential that the proposal contains similar provisions on adaption of the measures as it was negotiated in the above-mentioned two Framework decisions (ESO and probation).

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DENMARK


Pursuant to Article 265 of the Danish Criminal Code, the police can issue cautions (orders) on a person who violates the peace of another by intruding on him, pursuing him with written communication or inconveniencing him in other similar ways.

There are no recent statistics available on how many times a year an offender is imposed an obligation in order to protect the victim(s). However, in 2006 the police had 1.279 reports from citizens requesting a caution (order) issued against another person. Of the reported 1.279 cases 420 cautions were issued. In 2005, the police received 1.442 requests for cautions. 462 were issued. In 2004 the police received 1.540 requests for cautions. 419 were issued.


A caution is issued at the discretion of the police. However, it is a condition that the accused has resently committed one or more violations of the pease of another person. It is not a condition that the violations constitute criminal offences. A caution issued in accordance with Article 265 is valid for five years.


If a person violates Article 265 of the Danish Criminal Code the courts can impose a fine or sentence him or her to imprisonment for any term not exceeding two years.


Statistic shows that in 2007 there were 188 reports to the police of violations of cautions issued in accordance with Article 265. 13 persons were sentenced an unconditional prison sentence, 12 persons were sentenced a suspended sentence, 85 persons were fined, in 12 cases the charges were dropped, in 6 cases the person were acquitted and in 60 cases there were no charges.


The principle of mutual recognition has been the cornerstone in the judicial cooperation in criminal matters between the Member States since the Tampere conclusions of 1999. From a Danish point of view, the cooperation has worked very well. Hence, Denmark believes that the future cooperation in criminal cases should also be based on the principle of mutual recognition.

In this light, a possible new framework decision on mutual recognition of orders may have some added value.


It follows from Danish constitutional law that a decision made by a foreign authority cannot have direct effect regarding a person staying in Denmark. Thus, it will not be possible for a person situated in Denmark to rely on a decision original or subsequent issued by a foreign authority, unless a Danish authority has been involved and it has been transferred into a Danish decision.

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GERMANY


Criminal lawThere are no statistics on protection orders under criminal law. Lack of a reliable basis means an estimation is not possible.However, German statistics on criminal prosecutions do show whether or not obligations or instructions were issued in the case of suspended sentences, although no distinction is made according to type.

Civil law/Family lawAccording to statistics, the family courts concluded 14 501 proceedings under the Protection from Violence Law in 2008.No statistics are kept on how they were concluded.Statistics on proceedings before the civil courts last year are not yet available. In 2007, the magistrates' courts concluded 13 539 cases, 6 090 by a contentious final judgment or by a court order in interim proceedings for judicial remedy. Almost 3 000 cases ended in a settlement. No statistics were compiled on how many cases also involved injunctions under the Protection from Violence Law.

The fact that of all the concluded cases in which a decision as to costs was issued, which include the 1 152 cases in which actions were withdrawn, in 1 486 cases it was the plaintiff who bore most of the costs, in 6 210 cases it was the defendant and in 1 876 cases each party bore half of the costs (in the remaining cases the decision as to costs did not fit into any of these three categories) suggests that in more recently decided cases victims have prevailed much more often than they have been defeated.



Criminal lawSubstantive criminal law in Germany is rarely the basis for a protection order within the meaning of Article 2(2) of the Spanish draft, as it does not allow for autonomous protection orders. Instructions in the context of a suspended sentence or in the context of what is known as supervision of conduct, which commences under certain circumstances once a custodial sentence has been fully enforced, are the only option.Both of these variations presuppose a criminal judgment passed in Germany (see Section 56c and Section 68b of the German Penal Code).

Civil law/Family lawIn Germany the issue of autonomous protection orders is regulated exclusively under civil law in the Protection from Violence Law.Before the Law on Proceedings in Family Matters and in Matters of Non-Contentious Jurisdiction was introduced on 1 September 2009, either family courts or civil courts had jurisdiction over matters under the Protection from Violence Law, depending on the facts of the case. Now only the family courts have jurisdiction.


Infringements of injunctions pursuant to the Protection from Violence Law are liable as misdemeanours under Section 4 of that Law to a custodial sentence of up to one year or to a fine. This does not affect criminal liability pursuant to general provisions.



We do not share that opinion. It already seems doubtful whether there is a real need in practice for a European Protection Order. Cases in which a person presents a threat to the life, physical and psychological integrity, freedom, sexual indemnity or property of another person and continues to pose a threat even after the person at risk either has moved from one EU Member State to another or is (temporarily) staying in an EU Member State other than their country of residence are probably extremely rare. The person who poses a threat will only be able to follow the person at risk in exceptional cases.

In the few cross-border cases which do arise, the victim will contact the competent local authorities anyway, and at least obtain preliminary advice and support. If, in rare, isolated cases, the threat continues in the new country in which the person is staying, a new protection order can quickly be issued on the basis of national law. At least in Germany this normally takes only a few hours. The examination and transposition of foreign decisions, even if they are on a European legal basis, takes longer in most cases. This applies in particular to cases in which national law makes no provision for the protection measures ordered in the other Member State, making it necessary to ascertain which national protection measures ensure a comparable level of protection. A decision on the basis of national law alone therefore ultimately guarantees faster and better protection. A European Protection Order does nothing to improve victim protection.



Criminal lawIt would be very problematic for Germany if a protection order issued in another Member State had to be enforced in Germany using measures provided for under criminal law. Instructions in the context of suspended sentences or what is known as supervision of conduct are the only option allowed under German criminal law. Such instructions presuppose a criminal judgment handed down in Germany and imposing a custodial sentence which has either been suspended or after full enforcement of which supervision of conduct has commenced (see Sections 56c and 68b of the German Penal Code).

In cases in which another Member State issues a European Protection Order, there will often not be any German criminal judgment at all which could serve as a basis for (protection) instructions, never mind a judgment which satisfies the above criteria. An isolated protection order which is independent of such a German criminal judgment is not possible under Germansubstantive criminal law.

Even in the few cases in which, by pure coincidence, a custodial sentence was simultaneously handed down in Germany against the person concerned and it also satisfied the above criteria (suspended sentence or supervision of conduct), it would be very problematic to enforce a protection order issued in another Member State, since a (protection) instruction issued under German criminal law in respect of a suspended sentence can only be enforced by revoking suspension of the sentence. The (protection) instruction must therefore have an inherent connection to the offence for which the sentence was passed, which will not usually be the case for a protection order issued in another Member State.

Civil law/Family lawFirst of all, it is doubtful whether the planned European Protection Order also concerns the enforcement of judgments under civil law. Obviously the main aim of the European Protection Order is the protection of victims under criminal law.


That aside, it is hard to answer question number 4 from the civil procedure point of view. For example, it is not clear whether the question is directed at technical difficulties or at material difficulties, such as the content of the judgment or how it was reached.

In general, the following principles apply to the enforcement of foreign instruments in civil or family law matters in Germany:

The enforcement of foreign instruments in Germany is only admissible if the foreign judgment has been recognised and declared enforceable.

The procedure for recognition and enforcement is primarily based on the relevant EU Regulations or international agreements. Depending on the legal basis and form of the judgment to be recognised and enforced, these may be, for instance, Council Regulation (EC) No 44/2001 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters (Brussels I Regulation) or Council Regulation (EC) No 2201/2003 concerning jurisdiction and the recognition and enforcement of judgments in matrimonial matters and matters of parental responsibility, repealing Regulation (EC) No 1347/2000 (Brussels IIa Regulation).

If the judgment to be enforced does not fall within the scope of an EU Regulation or an international agreement, its recognition and enforcement are based on Sections 328, 722 and 723 of the Code of Civil Procedure or Section 107 of the Family and Non-Contentious Jurisdiction Law.

If a foreign judgment has been declared enforceable, enforcement are based on national enforcement law. To what extent difficulties may arise in the enforcement of a foreign protection order cannot be said without knowing more about the contents of the foreign judgment.

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ESTONIA


There has been at least 40 restraining orders applied (in criminal proceedings) towards 35 different people during the period from July 2006 till now. 23 of these restraining orders were temporary and 17 were assigned by the court judgment .

In 2006 (during the last 6 months) there were restraining orders applied towards 3 people, in 2007 12, in 2008 15 and in 2009 (9 months) towards 5 people.

Among these previously mentioned restraining orders, there are prohibitions to approach other persons and regulations to the use of housing or communication (via internet, telephone, mobile phone etc.).


In Estonia, such obligations can be imposed by a criminal court in the context of criminal proceedings.75(2)7 in Penal Code declares that the court may impose the obligation on the convicted offender for the period of supervision of conduct not to stay in places or communicate with persons determined by the court.The Code of Criminal Procedure (3101) allows courts to apply, at the request of the victim, for protection of private life or other personality rights of the victim on the basis of 1055 of the Law of Obligation Act, the restraining order with a term of up to three years to an offender convicted of a crime against the person or against a minor.


Such a request of a victim is adjudicated similarly as an application submitted in civil action. (Code of Criminal Procedure 310).Restraining orders can be imposed by a civil court in civil matters in following cases:

a measure for securing an action; or

provisional legal protection in proceedings on petition (Code of Civil Procedure 378 (1) 3, 546, 551 (1))

Restraining orders can be imposed as a civil law protection instrument in cases of infringement of personality rights (Law of Obligation Act 1055) According to the 475(1)7 of the Code of Civil Procedure, imposition of a restraining order and other similar measures for the protection of personality rights can be made in proceedings on petition. 544-549 of the Code of Civil Procedure provide the procedure related to designation of restraining order.


3312 of Penal Code declares that violation of a restriction order or other measure of protection of personality right imposed by a court decision, except violation of a temporary restriction order, if this poses a danger to the life, health or property of persons, or repeated violation of a restriction order or other measure of protection of personality right is punishable by a pecuniary punishment or up to one year of imprisonment.


Yes.



No.

If the restraining order is part of a criminal punishment, chapter 19 of the Code of Criminal Procedure applies.

Requests for recognition and execution of Estonian court judgments by foreign states is covered by 488 of the Code of Criminal Procedure.Assistance in recognition and execution of judgments of foreign courts is described in 476 and scope of assistance in 477 of the Code of Criminal Procedure.

In addition, chapter 62 of the Code of Civil Procedure covers recognition and enforcement of judgments in civil matters and other execution documents of foreign states.

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SPAIN


29.648 protection measures of those foreseen in this questionnaire were adopted last year in Spain.


The Spanish criminal justice system provides for the issue of a protection order in cases of gender violence, with a range of measures which confer full protection and can include provisional measures under civil and criminal law, as well as social assistance and protection measures.

Among the civil measures, the following ones could be mentioned: use of habitual residence, maintenance obligations, parental visiting rights

In Spain, offenders can be deprived of the right to reside in or enter specific localities, or prohibited from approaching or communicating with the victim or certain members of the victim's family. This applies not only to cases of domestic violence but also, depending on the seriousness of the case or the danger represented by the offender, to crimes involving murder, abortion or injury, crimes against personal freedom, torture, and crimes against moral integrity, sexual offences, attacks on personal privacy and the right to protection of one's own image and offences against the inviolability of the home, a person's good name, property and the socio-economic order, and can last up to 10 years in the case of serious offences and up to five years in the case of less serious offences. Such prohibitions can also be imposed in cases of suspended custodial sentences and as a security measure.



Not relevant.


We believe that the rights of victims could be better protected with such a mechanism that should consider the different national systems.


As a co-sponsoring Member State, Spain shares the view that all technical difficulties that may emerge will be solved since the objective of promoting the protection of victims is of theoutmost importance and a common aim for us all.

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FRANCE


La dlgation franaise ne dispose pas de statistiques permettant dvaluer le nombre prcis daffaires dans lesquelles des interdictions de contact avec la victime ou de sjour dans des lieux dtermins ont t ordonnes, les outils statistiques ne permettant pas denregistrer le dtail des obligations accompagnant une mesure de surveillance ou de probation.A titre purement indicatif, une valuation en matire daffaires conjugales a permis destimer 2.754 le nombre de mesures dloignement du domicile prononces au cours de lanne 2008. Cette estimation comprend les obligations rsultant de mesures pr- et post-sentencielles.

2. a) In your Member State, are such obligations (always) imposed by a criminal court in the context of criminal proceedings, or can they also be imposed by a civil court oradministrative authority in the context of civil or administrative proceedings?

Les interdictions d'entrer en contact avec la victime ou de pntrer dans certains lieux sont principalement ordonnes dans le cadre de procdures pnales.

Toutefois, dans le cadre d'une instance en divorce, le Juge aux affaires familiales, saisi en urgence selon la procdure des rfrs, peut, titre de mesure conservatoire, statuer sur la rsidence spare des poux lorsque les violences exerces par lun des poux mettent en danger son conjoint ou un enfant. Cette procdure dviction du conjoint violent, permet dattribuer la jouissance du logement conjugal au conjoint victime de violences. Elle nentrane pas pour autant une interdiction pour lauteur des violences de paratre au domicile ou dentrer en contact avec la victime.



Non, il n'existe pas de consquence pnale dans le cas cit ci-dessus.


Il parat premire vue paradoxal de prvoir un mcanisme de reconnaissance d'une dcision judiciaire dans l'Etat membre de rsidence de la victime, alors mme que la personne directement concerne par cette dcision (la personne poursuivie ou condamne), ne s'y trouve pas.

Pour la dlgation franaise, l'effectivit de la mesure de protection bnficiant la victime ne dpend pas de la reconnaissance qui en est faite par l'Etat membre dans lequel celle-ci s'est tablie : l'interdiction ou l'obligation s'impose la personne poursuivie ou condamne, quel que soit le lieu de rsidence de la victime. En revanche, si la personne poursuivie ou condamne tablit sa rsidence habituelle dans un autre Etat membre, les instruments adopts ou en cours d'adoption permettent de transfrer le suivi des obligations vers cet Etat1.

Pour assurer l'effectivit de la mesure en cas de changement de rsidence de la victime, il pourrait en revanche tre envisag de complter les instruments existants en organisant des modalits d'change d'informations entre les autorits comptentes des Etats membres concerns. Un tel mcanisme permettrait d'informer :

1 - Dcision-cadre 2008/947/JAI du Conseil du 27 novembre 2008 concernant lapplication

du principe de reconnaissance mutuelle aux jugements et aux dcisions de probation aux fins de surveillance des mesures de probation et de peines de substitution;

- Dcision-cadre 2009/829/JAI du Conseil du 23 octobre 2009 relative lapplication du principe de reconnaissance mutuelle aux dcisions relatives des mesures de contrle en tant qualternative la dtention provisoire.


1) l'Etat membre dans lequel la victime s'tablit, des obligations mise la charge de la personne poursuivie ou condamne et bnficiant la victime,

2) l'Etat membre dans lequel la mesure a t ordonne (ou celui dans lequel elle est suivie si le personne poursuivie ou condamne a chang de rsidence), de toute violation des obligations constates dans l'Etat membre de rsidence de la victime.


Comme indiqu prcdemment, il parat paradoxal de prvoir un mcanisme de reconnaissance d'une dcision judiciaire dans l'Etat membre de rsidence de la victime, alors mme que la personne faisant l'objet du suivi (la personne poursuivie ou condamne) ne s'y trouve pas.

La dlgation franaise estime que la mise en uvre dun instrument tel que dcrit serait de nature crer des confusions en termes de rpartition de comptences entre lEtat de rsidence de la victime et celui dans lequel la mesure est suivie.

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ITALY


In February 2009 a specific precautionary measure was introduced into the Italian legal system by which the aggressor can be prevented from approaching the victim, wherever the victim is. To date approximately 500 of said orders have been made. In the 8 years prior to the coming into force of this specific precautionary measure even without this specific precautionary measure approximately 150 orders were issued with analogous content as a consequence of judicial interpretation of the legislation in force at the time.In addition to what is indicated above there are also other measures adopted in the enforcement phase of a conviction in relation to which it is not possible to give credible statistics in a tight timescale.


Those obligation shall always be imposed by a criminal court in the context of criminal proceedings.


Yes, we agree.



The major difficulties that it is possible to foresee concern the operational aspects for the implementation of the order which depend on the movements of the victim and therefore are relevant in relation to intervention by the police and on the contrary not very compatible with procedures aimed at putting judicial authorities of different States into direct contact with one another.

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LATVIA


The obligation to avoid contact with the victim or obligation to enter certain localities are the security measures provided by Latvian Criminal Procedure Law and imposed on the suspected or accused person. During the year 2006, these security measures were applied in 83 cases, in 2007 in 123 cases, in 2008 in 184 cases, and during the first 9 months of the 2009 in 119 cases.

At the same time Latvia would like to draw attention to the fact that, in addition to the security measures imposed on the suspected or accused person, in accordance with Chapter 17 of the Latvian Criminal Procedure Law special procedural protection may be applied to persons who are victims of serious and especially serious crimes, as well as to victims who are minors.


Special procedural protection and security measures provided by Latvian Criminal Procedure Law could be imposed only according to the criminal procedure provided by the Law and within the criminal proceedings. Latvian law does not provide for the possibility to impose such obligations by civil court or administrative authority according to civil or administrative procedure.


Not relevant.




Up to date in the context of cross-border cases, where especially there should be a need for international judicial cooperation, Latvian competent authorities have not experienced substantial difficulties as regards protection of the victims. Thus, Latvia considers that elaboration of a new mechanism will not substantially improve the protection of victims. At the same time as regards the difficulties that Latvia finds to have the protection measures imposed in one Member State to be recognized in another Member State, Latvia would like to draw the attention to the fact that, the main difficulties arise due to substantial differences between mechanisms of protecting the victims chosen in each Member State. For example, there are differences between the understanding of the meaning and scope of the protection measures. At the same time, in some Member States obligations as regards protection of the victims are imposed in civil proceedings etc. Thus Latvia expresses its concerns that due to differences between the positions of the Member States it could be difficult to reach a compromise solution.

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LITHUANIA


Article 1321 of the Code of Criminal Procedure of the Republic of Lithuania (hereinafter referred to as the CCP) provides for one of the supervision measures as stipulated by the Code of Criminal Procedure, namely, the mandatory injunction to reside separately from the victim. In addition to being placed under the mandatory injunction to reside separately from the victim, the suspect may also be ordered not to communicate and not to seek contact with the victim and co-habiting persons, also not to visit the indicated places which the victim or the co-habiting persons usually stay at. Such a mandatory injunction is imposed during pre-trial investigation by a ruling of a pre-trial investigation judge at a prosecutor's request. In 2008, the mandatory injunction to reside separately from the victim was imposed in 12 criminal cases (against 12 suspects (accused), and during the first half of 2009 in 10 criminal cases (against 10 suspects (accused).

According to Article 132 of the Code of Criminal Procedure, the abovementioned mandatory injunctions are a constituent part of the supervision measure of house arrest. House arrest is the mandatory injunction imposed against the suspect to stay at the specified time at his place of residence, not to visit public places and not to communicate with certain persons. This supervision measure is imposed during a pre-trial investigation by a pre-trial investigation judge at a prosecutors request. In 2008, house arrest was imposed 59, and in 2009 49 times. In compliance with Article 136 of the Code of Criminal Procedure, the mentioned mandatory injunctions are also a constituent part of the supervision measure of a written obligation to stay at a designated place. The written obligation to stay at the designated place as imposed on the suspect may additionally prohibit him from visiting certain places as well as communicating and seeking contact with certain persons, including the victim.


A written obligation to stay at a designated place may be imposed by a prosecutors decision, a pre-trial investigation judges or courts ruling. In 2008, a written obligation to stay at a designated place was imposed 7697, and in 2009 8138 times. We do not hold statistical data as regards application of additional mandatory and prohibitive injunctions in combination with this measure.

According to provisions of the Criminal Code of the Republic of Lithuania (hereinafter referred to as the Criminal Code), similar mandatory injunctions are a constituent part of the penalty of restriction of liberty as provided for in Article 48 of the Criminal Code. The penalty of restriction of liberty is imposed by a court in the cases provided for in the Special Part of the Criminal Code. In addition to other mandatory and prohibitive injunctions as provide for in Article 48 of the Criminal Code, a court may, when imposing the mentioned penalty, place the convict under the obligation not to change the place of residence without giving a notice to a court or the institution executing the penalty, to stay at home at a certain time and/or prohibit the person from visiting certain places, communicating with certain persons or groups of persons, owning, using, acquiring, storing on ones own or transferring for safekeeping to other persons certain items. In 2008, the penalty of restriction of liberty was imposed against 1912 persons. We do not hold any current statistical data regarding the imposition of this penalty in 2009.

Article 721 of the Criminal Code stipulates that a court may impose a prohibition to approach the victim where this is necessary with a view to protecting the legitimate interests of the victim. Upon imposition of prohibition to approach the victim, the offender shall be prohibited, until the expiry of a time limit laid down by a court, from communicating and seeking contact with the victim, visiting the indicated places at which the victim is usually present. Taking account of the fact that Article 721 of the Criminal Code entered into force as late as on 27-06-2008, in 2008 this penal sanction was imposed 3 times, and in the first half of 2009 13 times.



The measures similar to the protection measures referred to in Question 1 are also provided for by the Civil Code of the Republic of Lithuania (hereinafter referred to as the Civil Code). Having regard to the interests of the children of the spouses as well as the interests of one of the spouses, a court may make orders for provisional protection measures pending the courts ruling. In addition to other protection measures referred to in Article 3.65 of the Civil Code, the court may make the following orders for provisional protection measures: order one of the spouses to reside separately, prohibit one of the spouses from having contact with his minor children or visiting certain places, determine the residence of the minor children with one of the parents and demand for one of the spouses not to interfere with the use of certain property by the other spouse. We hold no statistical data on the application of these measures.


Article 245 of the Criminal Code provides a general criminal liability regime for not complying with a court decision not associated with a penalty. It is a misdemeanour punishable by community service or by a fine or by restriction of liberty or by arrest.




The Republic of Lithuania supports the opinion that all the EU Member States should ensure an effective protection of victims with a view to paying due attention to the vulnerability of the victims and the incurred physical and psychological suffering as well as protecting the victim against secondary victimisation and further unlawful action of the offender. In general, the Republic of Lithuania would support EU action in this sphere. However, the position would depend on the concrete wording of the proposed instrument.

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NETHERLANDS


In the Netherlands an obligation, as meant by question 1, can only be imposed under special conditions. These special conditions arent usually registered in the case file, because they are very case-specific. As a consequence, it is impossible to provide statistics or an estimation of the number of cases in which such an obligation is imposed. From the beginning of this year however, the police have begun to register imposed obligations in the case of domestic violence. In these cases, the offender is prohibited from entering the home where the victim lives, nor is he / she allowed to contact the victum. Based on this registration, an estimated 1800 obligations of this sort will be imposed by the end of 2009 in the sole case of domestic violence.


The obligations, as referred to in question 1, can also be imposed by a civil court in the context of civil proceedings. In the administrative field, the Temporary Restraining Order Act of 1-1-2009 provides the possibility for the mayor to impose a ban on a person to enter a house, if his presence in the house forms a serious and immediate risk for the safety of persons who are residing with him in that house, or in case of serious presumptions of this risk. The ban can be imposed for a period of ten days, with a possibility to extend this period to a maximum of four weeks. The person involved has the right to lodge an appeal with an administrative judge.


In addition, the government has recently put forward a draft law to Parliament, which, in the context of the maintenance of public order, provides the mayor of a municipality with the power to issue an order to prohibit the presence of a person on a certain location or in a certain area in the municipality. This order can be issued for a period of three months, and it can be extended three times the same period (thus amounting to a maximum of nine months). The draft also provides the public prosecutor with the power to order a person not to appear in a certain area or to avoid contact with (a) certain person(s). This order can be given for a maximum period of 90 days, and can be extended three times the same period (thus amounting to a maximum of three times 90 days).


Yes, the infringement of the decision of the mayor to ban a person from a house is a criminal act, which can be sentenced with imprisonment of a maximum of two years. The infringement of the order referred to in question 2a, issued by either a major or a public prosecutor, is also a criminal act, which can be punished with imprisonment of a maximum of one year.


Yes, such a mechanism could possibly be useful to improve the protection of the victim, especially in cases of domestic violence or violence against women. Such a mechanism should be carefully tailored to the existing or planned instruments on EU-level, such as the Framework decision 2008/947/JHA on the application of the principle of mutual recognition to judgements and probation decisions with a view to the supervision of probation measures and alternative sanctions, and the proposal for a Framework decision on the European supervision order in pre-trial procedures between Member States of the European Union. Moreover, such a mechanism should be suitable for application by the law enforcement authorities.



The Netherlands have questions with regard to the capacity to enforce obligations imposed in other States. Moreover, because the level of protection between the issuing and executing States can be different, it might not be clear to the victim which protection he / she is guaranteed by the State in which he / she is residing.

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AUSTRIA


2006: in 116 cases; 2007: in 239 cases; 2008: in 188 cases.


In Austria, such obligations can also be imposed by a civil court or an administrative authority in the context of civil or administrative proceedings.


No.


We are not convinced of the added value of the proposed FD as in case the alleged offender continues to harass the victim in the executing State, administrative proceedings in order to protect the victim and/or criminal proceedings can and must anyway be initiated in that State in accordance with its own law. Furthermore, any possible added value seems to be limited as neither all the obligations set forth in Art. 2 para. 2 are provided for in the national law of the MS nor are all of them imposed by a criminal court in the context of criminal proceedings.



We do foresee difficulties as not all the obligations set forth in Art. 2(2) are provided for in the national law of the MS nor are all of them imposed by a criminal court in the context of criminal proceedings.

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POLAND


The statistics of the obligations, which were imposed on offenders for the protection of the victims in Poland in 2008, are as follows:

81 custodial sentences and 1235 suspended sentences, in which there was imposed on offender the obligation to avoid contacts with the victim;

409 suspended sentences, in which there was imposed on offender the obligation to leave the property (dwelling) shared with the victim;

1115 cases, in which an obligation not to enter to certain localities, places or defined areas was imposed on the offender


Protection measures, which are bound by the situation of threat are imposed within criminal proceedings. Irrespective of the stage of such proceedings it might be imposed either as preventive measures (pre-trial and trial proceedings) or measures which accompany the judgment founding the person guilty. Such obligations may not be imposed neither in civil nor in administrative proceedings.



Poland shares such opinion that mechanism establishing in victims favor the right to demand the enforcement in executing State (State where the victim moves to) of measures imposed on an alleged offender in issuing States would improve the protection of the victim.


The enforcement of obligation imposed on an alleged offender, which would be recognized by Polish judicial authorities, shall not create any difficulties.

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PORTUGAL


At the present time, it is not possible to provide such data.The Portuguese criminal system has a wide variety of measures, both at the pre-trial/trial stage and post trial (sentence) which may be applied to ensure the protection of the victim, through the imposition of certain obligations, in particular in the cases of domestic violence, which include, but are not limited to, obligation to avoid contact with the victim, and the obligation not to enter certain localities, places or defined areas where the victim lives.


It is not within the Portuguese legal tradition to apply this kind of obligations outside the context of criminal proceedings. Although, in theory it is possible to envisage that the victim requests, within a civil procedure, the imposition of certain obligations or conducts on the alleged perpetrator. However, as said before, the Portuguese legal tradition is to give the protection of rights of a personal nature to criminal law, and does not provide for measures of a civil nature


As stated in the previous question, there are no specific mechanisms of civil nature for the imposition of these obligations, and therefore, the issue is to be resolved at the level the criminal consequences of the infringement of these obligations. According to the Portuguese legal tradition, the infringement of obligations of this nature, determined by a court, may lead to criminal responsibility.



The above mentioned mechanism will surely improve the protection of the victim. That being said, the creation of such mechanism should be guided by the principle of necessity and proportionality, as well as take into consideration other existent EU instruments, in particular the Framework decision on the application, between Member States of the European Union, of the principle of mutual recognition to decisions on supervision measures as an alternative to provision detention, in order to establish the necessary articulation and a coherent system.


In principle, one does not foresee any special difficulty in enforcing as an execution as long as its execution is governed by the Portuguese law, as it seems to be, also, the philosophy of the project of the framework decision, as per its article 12 (governing law).

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SLOVENIA


Measure of prohibiting approach to particular person during the criminal procedure (Article 195a of Criminal procedure Act) was imposed in 105 cases by district courts and in 37 cases by county courts in the year 2006. In the year 2007 measure was imposed in 128 cases by district courts, in 19 cases by county courts and tree times in cases against minors. In the year 2008 there were 29 cases of measure being imposed by district court and 35 cases of measure being imposed by county courts in the course of criminal procedure.


The restraint order prohibiting approach to a specific place or person can be imposed by court in the course of criminal procedure as a substitute and less severe measure to detention order. In addition, police may order a restraining order prohibiting the person fromapproaching a particular place or person if there is a reasonable suspicion that a person hascommitted a misdemeanour involving violence or if a person has been caught in the committing of such a misdemeanour and there are reasons for suspecting that this person is about to endanger life, personal safety or freedom of a person with whom he/she is or was in a close relationship. Police order is ex officio reviewed by the district court investigating judge, who may uphold, amend or annul the restraining order.

There is also a possibility for witnesses, close relatives or other persons who are endangereddue to their relation with the witness together with persons showing remorse to be included in the witness protection programme (urgent protection measures include also technical protection of persons or residences and physical protection of persons or residences) if they


are endangered due to co-operation in criminal procedure. Witness protection programme is used under certain conditions set in the Witness Protection Act and is envisaged for criminal procedures with regards to more severe criminal offences (for wich undercover investigative measures can be used).

In the case of domestic violence victim can propose the court to issue an order to the perpetrator of violence to prohibit him the following:- entering to the accommodation premises where the victim lives;- to come at a specified distance within the proximity of the accommodation where the

victim lives;- to come near to places which the victim frequents regularly (workplace, school,

preschool facility, etc.).- to establish contact with the victim in any way whatsoever, including by way of the

means for distance communication;- to establish any kind of meeting with the victim.For decision-taking on this actions the District Court has jurisdiction over the subject matter in the non-litigious proceeding (nepravdni postopek) if it is not determined differently by the law. The court considers the matters on a primary basis, the proceedings are urgent and the public is excluded.


No.

3. Do you share the opinion that a mechanism whereby a victim can ask for the enforcement, in the Member State to which he/she moves (executing State), of a measureimposed on an (alleged) offender in another Member State (issuing State) would improve the protection of the victim?


Slovenia is not familiar with this mechanism as our system is based on supervision measures being imposed on offender and any violation requires consequences for the offender. Introducing the possibility for victim to ask for the enforcement would open both legal and practical difficulties and issues, in particular the relationship between the measure that is imposed on the offender and the victim.

4. Do you foresee any special difficulty to enforce as an executing State an obligation (possibly adapted in accordance with your national law) that has been imposed on an (alleged) offender in the issuing State

These questions are determined in the Framework Decision on Supervision measures (ie. ESO) and as regards its content we do not see any difficulties at this point.

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SLOVAKIA


Stated statistics data are not available.


These obligations may be imposed in the context of criminal proceedings (mostly by criminal court), but also may be imposed by civil court or administrative authority in the context ofcivil or administrative proceedings.

According to Art. 76 letters f) and g) of Slovak Code of Civil Procedure the civil court in the context of civil proceedings may issue a preliminary measure with a view to ordering the party to do something, to abstain from doing something, or to suffer something to be done or may issue a preliminary measure with a view to temporary prohibition of entry to house or flat in which a victim lives.

In the context of criminal proceedings may be such obligations according to provisions of Slovak Code of Criminal Procedure imposed by the criminal court in form of appropriate restrictions or duties. Such court decision is always connected with other decision (e.g.: imposition of sentence, conditional sentence, conditional release, imposing probation measure, etc.).

According to Art. 216 para. 4 of Slovak Code of Civil Procedure in case of conditional stay of criminal prosecution prosecutor may also impose appropriate restrictions designed to making accused person lead a regular life or refrain from the activities that led to the commission of the minor offence.


In addition also members of Police Corps may prohibit enter to certain place or impose to stay on certain place or allocate person from common residence. But all these measures are imposed only on necessary time period. For short time periods these measures cannot belong into the scope of proposed framework decisions.


Yes, person who seriously obstructs the enforcement of obligations imposed by civil court or police authority may be punished according to Art. 348 and 349 of Slovak Criminal Code (criminal offence: obstruction of enforcement of official decision).

3. Do you share the opinion that a mechanism whereby a victim can ask for the enforcement, in the Member State to which he/she moves (executing State), of a measure imposed on an (alleged) off

Documents

Answers Received by the-general-secretariat in Reply Questionnaire on European Protection Order